Mark A. Bate, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionSep 28, 2000
05a01010 (E.E.O.C. Sep. 28, 2000)

05a01010

09-28-2000

Mark A. Bate, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Mark A. Bate v. United States Postal Service (Great Lakes Area)

05A01010

September 28, 2000

.

Mark A. Bate,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Request No. 05A01010

Appeal No. 01975896

Agency No. 4J480100794

DENIAL OF REQUEST FOR RECONSIDERATION

Mark A. Bate (complainant) initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to reconsider the decision in

Mark A. Bate v. United States Postal Service, EEOC Appeal No. 01975896

(September 20, 1999).<1> EEOC Regulations provide that the Commission

may, in its discretion, reconsider any previous Commission decision

where the requesting party demonstrates that: (1) the appellate decision

involved a clearly erroneous interpretation of material fact or law; or

(2) the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is

the decision of the Commission to deny the request. The prior decision

held that complainant's appeal was untimely because it was filed more

than four months after the expiration of the applicable filing period.

Complainant did not offer a sufficient explanation of this delay on

appeal, nor does he offer one in his request for reconsideration.

Accordingly, the decision in EEOC Appeal No. 01975896 remains

the Commission's final decision.<2> There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this

decision. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 28, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 We note that while the prior decision was dated and mailed on September

20, 1999, complainant did not file his request for reconsideration until

June 23, 2000, long past the 30-day expiration period. Complainant

contends that he did not receive a copy of the prior decision until June

2000 when the agency gave him a copy during a pre-hearing conference

involving related matters. A review of the file reveals that while

complainant's copy of the prior decision was sent to an incorrect address,

a copy of the decision was also mailed to complainant's attorney. This

copy was mailed to the address provided by complainant on his appeal form.

Commission regulations note that when a complainant designates an attorney

as representative, service of all official correspondence shall be made

on the attorney and the complainant, but time frames for receipt of

materials shall be computed from the time of receipt by the attorney. See

29 C.F.R. � 1614.605(d). Complainant does not argue that his attorney did

not timely receive a copy of the prior decision. However, because there

is no evidence in the record confirming that complainant's attorney timely

received the prior decision, we have assumed that complainant's request

for reconsideration was timely filed. Although complainant expresses

a concern that he was denied the opportunity to file a civil action,

he still has that opportunity, as noted in the body of this decision.